Some unusual facts about repeal in Ethiopia (Part III)

This is the last part of ‘some usual facts about repeal in Ethiopia.’ It discuses the power of the rime minister to repeal a law and the sudden action of parliament to repeal its ‘law-making law’

Power of the prime Minister to repeal a law

Article 74 of the F.D.R.E. Constitution grants wider powers to the prime minister of the country. Even though, the Constitution allows conferring more powers to the prime minister other than those indicated in article 74 by issuing a law to this effect, in practice almost all the proclamations that define the powers and duties of the executive organs, do not provide for additional powers. Usually there will be simply a reference to article 74 of the constitution.

“The powers and duties of the Prime Minister of the Federal Democratic Republic of Ethiopia shall be as specified under Article 74 of the Constitution.” [Article 3 of Proclamation No. 691/2010 Definition of Powers and Duties of the Executive Organs of the Federal Democratic Republic of Ethiopia Proclamation]

My intention here is not to discuss the extent and scope of the power of the Prime Minister, rather to raise a question about his power of repealing a law. Does the Prime Minister have a power to repeal a law? Surely he does not have any power to repeal a law issued by the highest law making organ (The House of People’s Representatives.) What about regulations issued by the Council of Ministers and directives of administrative agencies? Looking at article 74 of the Constitution, it in no way provides such power to the prime minister. This similarly holds true for the laws of Addis Ababa Administration even though the administration is accountable to the federal government. On the other hand, the House of People’s Representatives is not constitutionally authorized to make a law empowering the prime minister to repeal a law.

Now, it is time to read article 3 sub article 3 of Proclamation No. 87/1997 (Addis Ababa City Government Charter Proclamation)

“The regulations, Directives and Decisions of the Addis Ababa City Government may be suspended or repealed by the Prime Minister of the Federal Government where they are deemed to be Prejudicial to the National Interest”

The scope of this provision seems to be limited to subordinate legislation, since it only mentions regulations and directives. Hence, it may be argued that the provision applies only to subsidiary legislation of the City Council. However, a brief look at some of the regulations issued by Addis Ababa administration, does not suggest that the term ‘regulation’ is used to refer to a law issued through delegation by a body subordinate to the city council. For instance the Addis Ababa City governmental information provision and standardization regulation number 34/2010 is issued by the City Council, which is the legislative organ of the administration. Even assuming that ‘regulation’ is a delegated legislation does not justify the power of the prime minister. The House of People’s Representatives by granting a repeal power to the prime minister clearly goes beyond the limits of its law making power as provided in the constitution.

The good news is that Addis Ababa City Government Charter Proclamation No. 87/1997 is totally repealed by the Addis Ababa City Government Revised Charter Proclamation No. 311/2003 (The repealing law is also repealed by the Addis Ababa City Government Revised Charter Proclamation No. 361/2003.) The current law which repealed previous legislations (Proclamation No. 361/2003) including subsequent amending proclamation (Proclamation No. 408/2004 Addis Ababa City Government Revised charter (Amendment) Proclamation) does not provide any power of repeal to the prime minister.

Parliament repealed its own ‘law-making’ law

Until 2006, the House of Peoples’ Representatives regulated its own legislative procedure by issuing a law (i.e. a proclamation) to this effect. All of a sudden it repealed its own ‘law-making’ law. The title of the repealing law is:

Proclamation No. 503/2006 The Proclamation to Repeal the Amended Proclamation of the House of Peoples’ Representatives Working Procedure and Members’ Code of Conduct Proclamation

Article 2 of the proclamation reads:

“[Article] 2 Repealed Laws

The Amended Proclamation of the House of Peoples’ Representatives working procedures and members’ code of conduct proclamation No. 470/2005 is hereby repealed in full.”

The first law enacted by parliament regulating the legislative procedure is Proclamation No. 14-1995 House of Peoples’ Representatives legislative Procedure Proclamation. After a year it was amended by Proclamation No. 33-1996 House of Peoples’ Representatives Legislative (Amendment) Proclamation. Both Proclamations were repealed by Proclamation No. 271/2002 House of Peoples’ Representatives Legislative Procedure, Committees Structure and Working Proclamation. The repealing law was again repealed by the Federal Democratic Republic of Ethiopia House of Peoples’ Representatives Working Procedure and Members’ Code of Conduct (Amendment) Proclamation No. 470/2005. For the last time Proclamation No. 470/2005 is now ‘repealed in full’ by Proclamation No. 503-2006 (Repeal of the Amended HPR Working Procedure and Members Code of Conduct Proclamation)

So, why did parliament choose to abolish any law regulating the law making process? Actually, what parliament has done is substituting the proclamation governing the legislative procedure by its own internal regulations. In short, it decided that the legislative procedure should not be regulated by a proclamation published in the Negarit Gazeta, but by an internal regulation not accessible to the public. Be it a proclamation or a regulation, the contents of any legislative procedure will be adopted by a majority vote of the house. Practically, it seems it doesn’t make a difference. Yes it true, if it is a regulation it is not subject to the requirement of signature by the Nation’s President to be effective. It may also be said the regulation will be valid in the absence of publication in the Negarit Gazeta.

As indicated in the preamble of the repealing law, the sudden move by parliament seems to emanate from Article 59 sub article 2 of the constitution. The provision reads:

“The House shall adopt rules and procedures regarding the organization of its work and of its legislative process.”

It may be said that this provision of the constitution allows parliament to regulate the legislative procedure by its own internal regulations. However, this could not be submitted as a convincing ground justifying repeal of Proclamation No. 470/2005. Parliament is expected to provide a practical necessity or a goal to be achieved in choosing a regulation over a proclamation. The preamble part simply states ‘…it has become necessary…’ without providing a single instance of the necessity.

Here is the preamble part of Proclamation No. 503-1998

“WHEREAS, the House is expressly provided by Article 59(2) of the constitution of the Federal Democratic Republic of Ethiopia to adopt rules and procedures regarding the organization of its work and of its legislative process;

WHEREAS, it has become necessary to issue regulation in accordance with the constitution regarding the working procedures of the House, as practiced in other countries;

WHEREAS, it has become necessary to repeal the Amended proclamation of the House of peoples’ Representatives working procedures and members’ code of conduct, and there by replace it by regulation”

If Article 59(2) of the constitution was the real justification, does it mean that the House of People’s Representatives was acting contrary to the constitution until the time it repealed Proclamation No. 470/2005? By the way I am so surprised by the fact it took more than 10 years for parliament to realize the existence of article 59 sub 2 of the constitution.

So, which regulation now regulates the legislative procedure? As I have said it before one of the problems of a regulation is its inaccessibility. Some lawyers may have knowledge that currently, the law making process of parliament is governed by regulation No. 3/2006 (The House of Peoples‟ Representatives of the Federal Democratic Republic of Ethiopia Rules of Procedures and Members‟ Code of Conduct Regulation.) But I doubt whether they have access to it. Previously the regulation used to be on official web site of the HPR, now it could not be found.

I was lucky to get the English version of the regulation and you can also get it here.

The legislative body is at least the ‘head’ of our government while the exectuive remains to be the mouth, legs, arms and many other part of the government, as much as possible they both try to be constitutional, just, moral and etc. The question I have now is, why to bother in repealng, amending and issuing ever increasing number of new laws when they both understand how to break any law or do something without any law for that matter.
My response for this retheoric question is, because they themselves understand thier deeds are illegitmate and contrary to generally accepted principles of law. But they do not bother for that.